Opinion
1466, 1466A
June 19, 2003.
Order and judgment, Supreme Court, New York County (Charles Ramos, J.), entered April 12, 2002, granting petitioner police officer's application to annul respondents' denial of his application for an accident disability retirement pension, awarding petitioner an accident disability pension and directing respondents to recalculate petitioner's pension, and bringing up for review an order, same court and Justice, entered December 10, 2002, which, upon reargument, adhered to the order and judgment of April 12, 2002, unanimously modified, on the law, to vacate the award of an accident disability pension and the direction to recalculate petitioner's pension benefits, the matter remanded to respondents for reconsideration of petitioner's application, and otherwise affirmed, without costs. Appeal from the order entered December 10, 2002, unanimously dismissed, without costs.
Rosemary Carroll, for petitioner-respondent.
Drake A. Colley, for respondents-appellants.
Before: Buckley, P.J., Mazzarelli, Ellerin, Williams, Marlow, JJ.
The motion court correctly held that the undisputed evidence of stress-related heart disease accompanying petitioner's admittedly disabling atrial fibrillation, including hypertension, left ventricular hypertrophy and dyspnea, raised a presumption that the disability was job-related which respondents failed to rebut (see Matter of Lunt v. Kelly, 227 A.D.2d 200, lv denied 90 N.Y.2d 803). However, the motion court should have remanded the matter to respondents for further consideration (see Matter of Duester v. McGuire, 81 A.D.2d 553), and we modify accordingly.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.